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SAN’S OITI, J.—Attorney-General v. Sivapragasam
1959Present: Sansoni, J.THE ATTORNEY-GENERAL, Petitioner, and K. SIVAPRAGASAM
et al., Respondents
8. C. 140—Application for Revision in M. G. Colombo, 11,286j A
Criminal procedure—Summary trial—Right of Crown Counsel to appear for com-plainant—-Right of prosecuting Counsel to decide not to place evidence beforecourt—Criminal Procedure Code, ss. 148 (2) (a), 189 (2), 194, 195, 199, 201,202, 216 (2), 290.
It is open to a prosecutor to omit to call evidence and thereby procure anacquittal.
In a prosocuf ion instituted under section 148 (1) (a) of the Criminal ProcedureCode in a case where a Magistrate’s Com t has power to try summarily, a CrownCounsel is entitled, under section 199 of the Criminal Proct dure Code, to appearand conduct the prosecution even against the complainant’s will. In such acase if the Crown Counsel informs the Magistrate that,in the interests of justice,he would not be placing any evidence against the accused it is not open to theMagistrate, instead of acquitting the accused, to prrmit the complainant tolead evidence for the prosecution.
Application to revise an order of the Magistrate’s Court, Colombo.
Ananda Pereira, Senior Crown Counsel, with V. S. A. Pullenayegum,Crown Counsel, for the Petitioner.
S. Nadesan, Q. C., with M. M. Kumarakulasingham, Siva Rajaratnamand S. Satyendran, for the Complainant-Respondent.
Cur. adv. vult.
June 17, 1959. Sansoni, J.—
The complainant S. Ramer instituted proceedings against the twoaccused, who are respectively a Shroff and a Storekeeper of the MarketingDepartment, under section 148 (1) (a) of the Criminal Procedure Codebefore the Chief Magistrate, Colombo. The charge against them wasthat they sold to the complainant a certain quantity of dry chillies at aprice in excess of the maximum controlled price, and thereby committedan offence punishable under the Control of Prices Act, No. 29 of 1950.When the accused appeared in Court in answer to the summons they werecharged from a charge sheet and they severally pleaded not guilty.
When the case came up for trial on 28th November, 1958, the complain-ant was represented by a proctor while the accused were unrepresented.Mr. Pullenayegum, Crown Counsel, applied to the Magistrate in terms ofsection 199 of the Code to conduct the prosecution. The complainant’sproctor objected and apparently stated that the Crown cannot appearfor the prosecution and the defence. This cryptic statement seems tohave been made because the accused had earlier informed the Magistrate
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that Mr. Pullenayegum was appearing for them. Argument was heardon the objection and the Magistrate rightly held that the Attorney-Generalwas entitled to appear and conduct the prosecution.
The case came on again on 6th February 1959 when Counsel appearedfor the complainant while the accused were unrepresented. Mr. Pulle-nayegum then applied to withdraw the case under section 195 of the Code.He gave three reasons for making the application: they were (1)there was no sale under the Control of Prices Act; (2) even if there was asale the accused did not sell; (3) the Act did not apply to the accused whohad acted as officers of the Marketing Department. The Magistraterightly refused the application, since it is only a complainant who isentitled to make it.
On 6th March when the trial was taken up again, Mr. Pullenayeguminformed the Magistrate that the Attorney-General in the interests ofjustice would not be placing any evidence against the accused beforethe Court. The Magistrate then took time to consider his order, and on11th March he made an order which concluded: “I therefore permitCrown Counsel to retire from the case and ask Counsel for the complainantto lead evidence for the prosecution ”. Crown Counsel thereupon statedthat he was not seeking to retire from the conduct of the prosecution andthat he objected to any one else being allowed to conduct the prosecution.The Magistrate noted the objection and overruled it.
The trial proceeded, with the complainant’s counsel conducting theprosecution. The 2nd accused was acquitted at the close of the case forthe prosecution, and further hearing was fixed for 18th March as againstthe 1st acoused. In the meantime this application was made by theAttorney-General who asks this Court to set aside the order made on11th March 1959 and to direct that an order of acquittal be enteredforthwith in favour of the 1st accused.
Section 199 reads : “ The Attorney-General, the Solicitor-General, aCrown Counsel, or a pleader generally or specially authorised by theAttorney-General shall be entitled to appear and conduct the prosecutionin any case tried under this Chapter, but in the absence of the Attorney-General, the Solicitor-General, a Crown Counsel, and any such pleaderas aforesaid the complainant or any officer of any Government departmentnr any officer of any Municipality, District Council or Local Board mayappear in person or by pleader to prosecute in any case in whichsuch complainant or Government department or Municipality or DistrictCouncil or Local Board is interested ”.
The section gives the Attorney-General and others under him the rightto appear and conduct the prosecution in any summary trial, and only in•case of their absence can the complainant or informant appear andprosecute in person or by pleader. In my opinion the Magistrate formedan erroneous impression of the statement made by Crown Counsel on 6thMarch. A decision not to lead evidence is totally different from a decisionto retire from the ease; and conducting the prosecution does not neces-sarily mean leading evidence. It may happen that all the available
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SANSONTI, J.—Attorney-General v. Sivapragasam
evidence taken together will not establish the charge against the accused,and in such a case a fair-minded prosecutor will refrain from leading anyevidence.
The Magistrate himself has said in the course of his order on 11th Marchthat when the prosecutor does not lead any evidence against the accused,the usual order is an order of acquittal; but he chose not to make theusual order in this case, his reasons being : (1) that the Attorney-Generalcannot appear for the defence, nor should he be permitted while osten-sibly appearing for the prosecution to be in fact appearing for the defence,and the attempt to conduct the prosecution was for the purpose of seeingthat these accused were not tried by him; and (2) that the power of theCourt to disallow the withdrawal of a case under section 195 is sufficientto overcome Crown Counsel’s decision not to lead any evidence.
On the first point, 1 think that the Magistrate has been undulyinfluenced by the statement'made at the first trial by the accused thatCrown Counsel was appearing on their behalf, and by the application to-withdraw the case. No counsel worthy of his calling would be guilty ofsuch conduct as the Magistrate attributes to Crown Counsel, who ex-plained in no uncertain terms the views of the Attorney-General in regardto this prosecution and why this particular course was being followed.On the second point, I do not think that section 195 has any bearing onsection 199. The former section provides a method by which a com-plainant may withdraw a case; he cannot do so without the leave of theMagistrate, who has a discretion whether to allow the application or not.The latter section confers an unqualified right on the Attorney-Generaland his subordinates to appear and conduct a prosecution, and theMagistrate cannot prevent the exercise of that right.
The only question which arises on this application is whether counselcan be said to appear and conduct a prosecution under section 199 whenhe informs the Court that he does not intend to lead any evidence. Theearlier statement which Crown Counsel made when he sought to withdrawthe case set out the reasons for the decision which he ultimately took,but whether reasons are given or not, a prosecuting counsel has the rightand even the duty to make such a decision.
Mr. Nadesan argued that it is not open to a Crown Counsel who claimsto appear and conduct a prosecution to say that he is not leading evidence.He went so far as to say that no prosecutor, not even the Attorney-General,has a discretion in the matter; and that if there is evidence available hemust lead it, and if he does not lead it he ceases to appear and conductthe prosecution and the complainant or his pleader would then beentitled to prosecute and lead evidence. With respect, I entirelydisagree with this proposition. The logical result of accepting it wouldbe to place a duty on prosecuting counsel to lead evidence even when heknows that all the available evidence will fail to establish the chargeagainst the accused. No prosecuting counsel with any regard for theCourt or his own position as an officer of justice need follow such a course-The only object of leading evidence for the prosecution is to establishthe ingredients of the charge, and if counsel is not satisfied in his own mind
SANSONI, J.—Attorney-General v. Sivapragasam
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that the totality of the evidence available will achieve that result, he willbe failing in his duty to the Court and to the accused if he were to insiston a fruitless recording of evidence and a senseless waste of time. It is-quite wrong to suppose that a prosecuting counsel’s duty is a mere mecha-nical leading of evidence regardless of the object for which evidenceis led. If he is satisfied that the evidence is insufficient to prove thecharge and insists on leading evidence, how can he in conscience askthe Court to convict the accused ?
I have not seen the duties and responsibilities of prosecuting counselset out better than in an article written by Mr. Christmas Humphreys Q. C.when he was Senior Prosecuting Counsel, Central Criminal Court h Hisview, and it is one with which I respectfully agree, is that “ the prosecutoris at all times a minister of justice, though seldom so described. It isnot the duty of prosecuting counsel to secure a conviction, nor should anyproseoutor feel pride or satisfaction in the mere fact of success….
His attitude should be so objective that he is, so far as is humanly possible,indifferent to the result ”. He continues : “I have never myself conti-nued a prosecution where I was at any stage in genuine doubt as to theguilt, as distinct from my ability to prove the guilt, of the accused.It may be argued that it is for the tribunal alone, whether magistrate orjury, to decide guilt or innocence. I repeat that the prosecutor is funda-mentally a minister of justice, and it is not in accordance with justiceto ask a tribunal to convict a man whom you believe to be innocent ”.
The obligation of prosecuting counsel to maintain scrupulous fairnessin every case he handles is all the greater when he is Crown Counselrepresenting the Crown in a prosecution. For “ the Crown is interestedin justice, the defence in obtaining an acquittal within the limits of lawfulprocedure and Bar etiquette ”. As Lord Hewart L.C.J. said inSugarman 2, “ It cannot be too often made plain that the business ofcounsel for the Crown is fairly and impartially to exhibit all the facts tothe jury. The Crown is not interested in procuring a conviction. Itsonly interest is that the right person should be convicted, that the truthshould be known and that justice should be done ”. I cannot see howthe jury can honestly be asked even to consider convicting the accusedif counsel for the Crown is satisfied that such a result should not followupon the evidence available to the Crown. He must first be satisfied thatthere is a prima facie case against the accused before he enters on thetask of leading evidence.
Mi’. Nadesan drew attention to the other sections of the Code in whichthe phrase “ conduct the prosecution ” or similar words occur. In atrial by a District Judge the same persons as those mentioned in section199 conduct the prosecution (see section 201); under section 202 theAttorney-General may withdraw any indictment, while other prosecutingcounsel can do so only with the permission of the District Judge. In atrial before the Supreme Court the prosecution must be conducted by thesame persons who must all be advocates (see section 216 (2)); theAttorney-General can inform the Court that he will not further prosecute
Criminal Law Review (1955) page 739.
(1935) 25 Or. App. Rep. page 115.
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SANBONT, J.—Attorney-General v. Sivapragasam
upon the indictment, while other prosecuting counsel may only withdrawthe indictment with the consent of the presiding Judge. The result ineach case is that proceedings against the accused are stayed and he isdischarged.
My attention was also drawn to section 290 which deals with the com-pounding of offences, and the power of the Attorney-General to enter anolle prosequi and pardon an accomplice. The argument based on theseprovisions was that when the legislature intended to confer a power towithdraw or terminate a prosecution, that power was expressly con-ferred ; and it would therefore be wrong to use section 199 in order toachieve indirectly, by the device of declining to lead evidence, what canonly be done directly under the other sections already mentioned.
More to the point, however, is section 189 (1) which applies to summarytrials : it does not compel a complainant or his pleader to lead evidence.Again, a complainant can, if he chooses, absent himself from Court andsecure the acquittal of the accused (section 194). A Magistrate cannot,in a summary trial, force a complainant or his pleader to lead evidence.He can, in his discretion, enquire from the Attorney-General whetherthat officer wishes to exercise his right under section 199. But he cannotreverse the provisions of that section and permit the complainant or hispleader to prosecute in preference to the Attorney-General, as was donein this case.
The submission on behalf of the complainant in this case seems to springfrom an imperfect appreciation of the proper attitude required of prose-•cuting counsel. The mere circumstance that there are other courses opento a prosecuting counsel who is of the opinion that the charge against theaccused cannot be maintained, does not deprive him of the discretion todecide not to place evidence before the Court. Such a decision may haveto be reached even in a trial for murder. Mr. Humphreys refers in hisarticle to the Clapham Common murder trial (R. v. Davies'), wherehe sent a message to counsel appearing for four of the six youthscommitted for murder to the effect that he proposed to offer no evidenceagainst their clients and that his decision was final. Nobody can possiblysay that when he made that decision he had ceased to prosecute. I wouldprefer to say that he was prosecuting in accordance with the highesttraditions of his profession and as a true minister of justice.
Since I reserved my order Mr. Nadesan drew my attention to a passagein Arch bold which reads : “ It is said that except where the Attorney-General enters a nolle prosequi it is necessary to obtain the leave of thecourt to abandon a prosecution after the indictment is signed, whetherthe prosecution desire to effect this purpose by offering no evidence,or otherwise ”. 2. A reference is made to a case heard in 1899. Fromthe very wording of the passage the author would seem to be in some doubtabout the matter, and it is far from clear whether the reference is to ajudgment or not. I dare say that prosecuting counsel would always, as amatter of courtesy, in the first instance seek the leave of the Court, butI am not satisfied that such leave is a peremptory requirement.
i (1954) A. C. 378.
33rd Edition page 1269.
WEERASOORIYA, J.—Matale Asgiri Pallesiyapattu Oo-op. Society v. Perera 473
My reason for saying so is, firstly, what appears to have taken placein R. v. Davies; secondly, there is an earlier passage at page 111 ofArchbold, based on the case of Elworthy v. Bird1, where Best C. J. saidthat it was open to a prosecutor to omit to call evidence and therebyprocure an acquittal.
I think that the learned Magistrate should have made an order ofacquittal when Crown Counsel stated that he was not placing evidencebefore the Court. I set aside the order he has made and direct him toenter an order of acquittal in respect of the 1st accused.
Order set aside.